NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
DWC is looking for input on the proposed Medical Quality Review Audit Plan for
the year 2025. The plan is to conduct one audit to evaluate the quality of
designated doctor (DD) reports and the necessity of additional testing or
referrals ordered by DDs to resolve the issue in question.
Meanwhile, the 2024 Annual Audit Plan was to evaluate the feasibility
and impact of adopting a more current version of the AMA Guides to the Evaluation of
Permanent Impairment. The 4th edition was published in 1993 and since
then, the 5th and the 6th editions have been published, with updates to the 6th
edition published yearly since 2021. There are two months to go in 2024 so we
will await the results of this study with bated breath. (Okay, okay, to be
fair, the DWC did acknowledge in its 2025 announcement that this study
was dependent on revisions to the musculoskeletal chapters, which were just
finalized on September 12, 2024 and effective December 1, 2024.)
Regardless:
Copyright 2024, Stone Loughlin & Swanson, LLP
Last week SLS attended
the National Workers’ Compensation Defense Network (NWCDN) meeting in Denver as
the Texas member. The group is comprised of one vetted law firm member
from each state. We were invited to be the Texas member 17 years ago and
continue to work with the group in support of Texas employers and insurance
carriers who insure them. Jane Stone gave a short presentation about
these disputes to the employers and decision-makers present at the meeting.
There are over 3,000 air ambulance fee disputes currently pending in the Texas
workers’ compensation system. The average amount in dispute in each case
is over $50,000 for a total at stake of at least one hundred fifty million
dollars plus interest. These disputes have gathering at the Division of
Workers’ Compensation since 2012 while the parties continue to litigate the
threshold issue of whether the federal Airline Deregulation Act of 1978
preempts the Texas Workers’ Compensation Act’s reimbursement standards for
medical care.
The ADA prohibits states from regulating the price, route or service of an “air
carrier.” The air ambulance companies argue that the ADA preempts Texas’
workers’ compensation laws that govern the amount of reimbursement owed to
health care providers and therefore, they are entitled to their full billed
charges for transporting injured workers. The air ambulance companies’ billed
charges are significantly more than the amount paid by the insurance carriers
which in most cases is 125% of the Medicare rate.
The air ambulance companies’ billed charges are generally 600% to 1,200% of the
Medicare rate. For the sake of comparison, the Division’s fee guideline
payment adjustment factors range from 125% of the Medicare rate for the Medical
Fee Guideline to 235% of the Medicare rate for the Ambulatory Surgical Center
Fee Guideline. In 2015, an ALJ at the State Office of Administrative
Hearings issued a decision finding that 149% of the Medicare rate was fair and
reasonable reimbursement for the air ambulance services at issue but on appeal
that amount was determined to be too high.
The Division of Workers’ Compensation has abated all of the pending individual
fee disputes while the preemption issue is litigated. However, the Division
recently issued decisions in the Air Evac fee disputes. The Division awarded
$0.00 additional reimbursement on the grounds that it cannot determine the
proper payment amount because of the federal injunction Air Evac obtained that
enjoins the Division from applying its “fair and reasonable” reimbursement
standards against Air Evac.
This preemption issue has been litigated in other states but none more than
Texas. The litigation in Texas over the preemption question has been going on
for over ten years. The issue has been litigated to the Texas Supreme Court and
Fifth Circuit Court of Appeals which reached different conclusions. The
Fifth Circuit held there is preemption while the Texas Supreme Court held there
is not.
Case law holds that Texas courts are not bound by the Fifth Circuit but
only higher Texas courts and the U.S. Supreme Court. Therefore, the ALJ
overseeing the air ambulance disputes currently pending at the State
Office of Administrative Hearings recently issued a ruling that he would follow
the Texas Supreme Court’s decision and apply Texas’ “fair and reasonable”
reimbursement standards for workers’ compensation to determine the amount of
reimbursement to which the air ambulance providers are entitled.
The ALJ has now set two groups of cases for hearings on the merits in April and
May 2025. The air ambulance providers are expected to appeal the ALJ’s
final decision when issued so the air ambulance litigation in Texas is far from
over.
Copyright 2024, Stone Loughlin & Swanson, LLP
Everyone remembers the
anxiety waiting for a report card brings. Insurance carriers and
employers are no different, and the news is good for those that take advantage
of the benefits provided by networks. According to TDI’s Division of Workers’
Compensation, what we at SLS have seen regarding the effectiveness of networks
certified under Chapter 1305 of the Texas Insurance Code is confirmed by the
numbers. Networks tend to be more cost efficient than non-network claims. The
cost differences appear to be driven in part by lower hospital utilization and
lower prices per service. Despite lower costs, network claims as a whole have
higher satisfaction levels with health care, faster return-to-work and better
functional outcomes. Network claims tend to receive initial non-emergency
medical care faster than non-network claims, which studies have shown may
assist in controlling health care costs and reducing missed time from work.
Injured workers’ early return to physical function and productivity is
the goal of the workers’ compensation system– and it is working!
Copyright 2024, Stone Loughlin & Swanson, LLP
Well, not really.
However the DWC has set weekly benefit rates for fiscal year 2025. For
dates of injury beginning October 1, 2024 through September 30, 2025, the state
average weekly wage is $1,218.62. Keep in mind that the rate applied to any
particular claim is set as of the date of injury.
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC is putting on its
annual Texas Workers’ Comp Conference October 22nd and 23rd in Austin and
registration is still open. It is the “go to” event in the Fall every year for
anyone involved in the workers’ compensation process. A featured speakers is Mark
Pew who is well respected as one of the developers of the excellent Workers’
Comp College educational platform, for which SLS is the Texas contributor.
Check it out here.
Copyright 2024, Stone Loughlin & Swanson, LLP
We couldn’t resist this cartoon! The Fall is also the time carriers are asking SLS for Zoom training meetings, which made this especially relevant to those of us who teach!
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC has proposed a
rule addressing a little-known problem. In some circumstances SIF can
issue Lifetime Income Benefit payments to an employee who meets the criteria.
Of course the employee must be alive to receive them. This new rule
proposal protects the Fund by providing a process to verify that a LIBs
recipient is still among the living before the payments are issued.
Public comments are being accepted to proposed Rule 131.5. (CITE)
Copyright 2024, Stone Loughlin & Swanson, LLP
Attorney Colby Liesman
is reported to be the newest ALJ to come on board at the agency. He got
his law degree at the Florida Coastal School of Law in 2017 and was licensed to
practice law in Texas in 2018. Prior to his employment at the agency, his
practice areas included business, criminal, family and probate law. His
wide range of expertise will serve him well in his new role dealing with
claimants, the administrative process, and the lawyers who practice the
interesting and complex field of workers’ compensation. Welcome, Judge Liesman!
Copyright 2024, Stone Loughlin & Swanson, LLP
TOY GROUP
How Exclusive is “Exclusive”
The stage is set for
the Supreme Court of Texas to weigh in on whether a plaintiff can bypass the
DWC adjudication process and, instead, have a trial court consider the merits
of a defendant’s exclusive remedy defense in a plaintiff’s personal injury lawsuit.
The courts are now officially split on the issue. In January of 2023, the
13th Court of Appeals decided UTRGV v Oteka, and decided Ms. Oteka
did not need to exhaust her administrative remedies with the DWC before filing
her personal injury suit and the trial court had jurisdiction to deny UTRGV’s
plea to the jurisdiction. No. 13-22-00063-CV, 2023-WL 413587 (Tex. App. –
Corpus Christi – Edinburg Jan. 26, 2023, pet. filed) (mem. op.)
Noting UTRGV had not had the merits of the exclusive remedies
defense considered by the trial court, instead moving for dismissal on the
grounds that the course and scope issue was the exclusive jurisdiction of the
Division, the Valley Court of Appeals concluded that “Oteka’s suit is not based
on the ultimate question of whether she is eligible for workers’ compensation
benefits. As we previously observed, it is ‘just the opposite, if
[Oteka’s] injury is compensable, this would likely bar [her]suit pursuant to
the exclusive-remedy defense.’”
Fast forward to August 20, 2024, when the 1st Court of Appeals in
Houston took the completely opposite position. The Houston Court spent
quite a bit of time unpacking the Texas Workers’ Compensation Act and the legal
precedent supporting their holding that failure to exhaust the administrative
remedies required by the Act deprived the trial court of subject matter
jurisdiction over the personal injury lawsuit filed by the plaintiff in In Re Prentis, a
mandamus action filed by the defendants in a personal injury suit filed by Desi
Sykes arising out of claimed work injury. (No. 01-23-00616-CV, 2024 WL
3862953(Tex. App. – Houston [1st. Dist] August 20, 2024).
The 1st Court of Appeals reasoned that the Act vested the Division
with the sole authority to determine whether an employee sustained a
compensable injury thereby entitling him to workers’ compensation benefits and
that same Act provides the mechanism for resolving disputes regarding those
claimed injuries.
Sykes’ thought that the fact that whether he was injured in the course and
scope of his employment was “hotly contested” conferred jurisdiction on the
trial court and allowed him to bypass the DWC administrative process. The
1st Court disagreed. The Court of Appeals held, to the
contrary, that the Legislature conferred exclusive jurisdiction on the DWC “to
consider in the first instance the question of compensability, including the
question of course and scope” and Sykes failed to exhaust his administrative
remedies, necessarily depriving the trial court of jurisdiction over the
matter. The 1st Court determined abatement, rather than
dismissal was the appropriate remedy, pending the exhaustion of Mr. Sykes’
administrative remedies. The 1st Court conditionally granted
the Petition for Mandamus feeling confident the trial court would vacate its
order denying the Plea to the Jurisdiction and issue and order abating the case
in accordance with its holding.
With the Courts of Appeal in a dogfight over this exclusive remedy issue, the
Supreme Court is primed to bring the issue to heel once and for all.
Administrative Violations Don’t Defeat Exclusive Remedies Defense
Meanwhile, over in
Cowtown, the Fort Worth Court of Appeals, upheld a trial court’s summary motion
judgment in Lane v. Odle,
2024 WL3897109 (August 22, 2024). Mr. Lane filed a third-party suit and
Odle, Inc., filed a summary judgment motion in district court alleging an
exclusive remedy defense, presenting all kinds of evidence of Mr. Lane’s
employment status. The trial court granted the summary judgment.
Lane’s arguments in support of his defense of the summary judgment included:
the failure of Odle to prove TDI had approved its workers’ compensation policy;
the failure of Odle to offer evidence that it was authorized to write workers’
compensation insurance in Texas; and, Odle’s failure to show it was a
registered subscriber with TDI. The Fort Worth Court held that in order
to prevail, Odle had to show that Mr. Lane was its employee at the time of the
injury and was covered by its workers’ compensation insurance policy.
The Court pointed to numerous pieces of uncontroverted evidence, including Mr.
Lane’s own petition in which he asserted he was an employee, in support of the
affirmative defense and defeat of the no-evidence grounds. The Court then
looked to the shifted burden and discussed the fact that rather than attaching
evidence raising a genuine issue of material fact, Lane complained that there
was no evidence the workers’ compensation insurance policy was approved by TDI
and that Odle’s parent company failed to register with DWC – facts that
amounted to administrative violations – not facts that would overcome Lane’s
evidentiary burden. The Fort Worth Court of Appeals cited other Texas
courts who have held an administrative violation does not affect an employer’s
ability to satisfy the employer element of the exclusive remedy defense.
WORKING GROUP
The Appeals Panel was
busy this month – and by busy, I mean they wrote three decisions, which lands
them squarely in the Working Dog Group.
In APD 240974,
they reversed and remanded an ALJ who made a material error in the statement of
the evidence when determining a claimant didn’t have disability. When
adding up the claimant’s earnings for the relevant disability periods, the ALJ
apparently got the math wrong and the Appeals Panel remanded the case to allow
the ALJ to dust off her trusty calculator and try again.
In APD 240839
and APD 240805,
the Appeals Panel reversed ALJs who got it right on extent of injury, but
subsequently adopted designated doctor certifications of MMI/IR that included
conditions that they themselves determined were not compensable. The
Appeals Panel pointed out that this is a no-no and overcomes the presumption
afforded said designated doctor. In 240839, happily there was another
certification that rated the compensable injury and the Appeals Panel was able
to render a decision on MMI/IR. In 240805,
however, there was no other certification that rated the compensable injury, as
defined by the Division after the CCH, and the Appeals Panel had no choice but
to remand for the ALJ to send the case back to a designated doctor to rate the
compensable injury only.
SPORTING GROUP
BE A SPORT!! REGISTER NOW! FOR THE 5TH
ANNUAL Kids’ Chance of Texas Golf Tournament – October 28, 2024 –
Shotgun start 1:00 p.m. – The Lakes at Castle Hills, Lewisville, Texas
HOUNDS
Licensing board hounding
you to get your hours in? Here’s a great opportunity to rack up some CE
credit and learn a few things while you are at it: NWCDN’s Annual
Conference in Denver September 26, 2024 – BONUS: It’s free to SLS clients 😊 – Check out the Agenda here.
TERRIERS
The Division is like a dog with a bone when it comes to sending out information and they just introduced a new way to do just that - the DWC Texas Comp Update. Check it out here.
HERDING GROUP
The Division is herding everyone
together on September 5, 2024 at 2:30 p.m. for a Hybrid Insurance
Carrier/Health Care Provider Quarterly Meeting. For more information about this
and future hybrid stakeholder meetings, including dates and times and Zoom
links, see here.
NON-SPORTING GROUP
A few participants found themselves in the doghouse with the Division recently which landed them in the non-sporting group.
One claimant’s attorney, was directly paid attorney fees by the Carrier by
virtue of winning a disputed SIBs quarter. He failed to timely pay back
said Carrier when ordered by the DWC following a CCH requested by the Carrier
to dispute the amount of those fees. The DWC felt 1,857 days was far too
long to pay back the owed fees, regardless of any mitigating circumstances,
fined him $10,000 and ordered him to attend 6 hours of ethics.
An RME doctor, who was ordered by the DWC to perform an extent of injury
examination, apparently threw in an MMI/IR certification as well and completed
a DWC-69 and report, which was entitled “Peer Review/Impairment Rating.”
The Division fined the doctor $500.00 for improperly certifying MMI/IR when not
being ordered to do so, and for certifying MMI/IR without an examination
(although there clearly was some kind of examination), and for assigning a
prospective MMI date.
A carrier is on a short leash with the DWC when it comes to lifetime and death
benefits. The Division, noting the harm in failing to timely pay LIBs and
death benefits to injured employees and their beneficiaries under particularly
stressful circumstances, fined the Carrier $19,000 for a variety of violations
related to the administration of death and LIBs benefits.
Finally, a Carrier who determined there were no beneficiaries in a death case
waited 84 days too long to send that money to the SIF. Turns out, that
dog won’t hunt – the Carrier was fined $32,000!
It’s a dog-eat-dog world in workers’ comp so keep your nose clean (and out of
your neighbor’s tail) and remember, every dog has his day.
BEST IN SHOW
From time to time, we
all hear some interesting - and let’s face it - entertaining stories in our
line of work. Our Best
In Show entry is designed to put a smile on your face as you
slough off the August heat and, hopefully, welcome some cooler fall days.
While reviewing a BRC report recently, our own Robert Greenlaw came across a
most peculiar injury for which he was unable to find a corresponding ICD-10
code – a lumbar disc bugle!
As Rob put it, “wouldn’t want to hear him play that…”
Copyright 2024, Stone Loughlin & Swanson, LLP
Course and scope of employment, specifically the question of whether an
employee was merely “coming and going” to/from work at the time of an injury,
is one of the trickier aspects of Texas workers’ compensation jurisprudence,
often hinging on minute details of the particular claim. Any guidance in this
arena is therefore highly coveted, and the Texas Court of Appeals in Amarillo
has just provided some much-needed clarity in Old Republic Insurance Company v. Evans, No.
07-23-00326-CV, 2024 WL 3249336.
The employee in the case was tragically killed in a motor vehicle accident on
his way to work in the early morning. He left home on his motorcycle, arrived
at work, and entered the building by scanning his security badge. However, he
realized that he left his company laptop at home and felt he could not proceed
in his work duties without it. Thus, he departed, returned home to claim the
laptop, and drove to work again, during which time he was involved in the fatal
collision.
The Administrative Law Judge at the Contested Case Hearing determined that the
decedent was not in the course and scope of his employment at the time of his
death, but the Appeals Panel reversed. A trial court jury concurred that the
decedent’s work day commenced when he arrived to work and that he needed his
computer to further the business affairs of the employer, hence he was still in
the course and scope of employment at the time of his death.
The Court of Appeals disagreed, reasoning that the decedent was under no
express direction from his employer to return home to recover the computer, and
thus he was not on a special mission that would otherwise have provided an
exception to the coming and going rule. The fatal injury was therefore deemed
non-compensable.
The complicated analysis required for “coming and going” cases is illustrated
here by the fact that the decision kept switching back and forth, from the ALJ,
to the Appeals Panel, to the trial court, to the court of appeals. See, like we
said, “tricky.”
Copyright 2024, Stone Loughlin & Swanson, LLP